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Defending a Criminal Case  A to Z

Jonathan Marks has been defending people accused of crimes in the federal and New York State courts since 1978.   Clients ask how he does it.  This article describes his approach.

The First Step in Criminal Defense

The first step is to analyse the charging instrument ,i.e., the complaint, the indictment or the information, in order to determine the crimes charged, the prosecution’s theory, the nature of the evidence against the defendant and possible defenses.  This process requires the active assistance of the client, who usually has unique knowledge as to the basis for the charges. 

In the early stages, it is necessary to make a preliminary assessment of the client’s exposure under the advisory sentencing guidelines in the federal system and the sentencing statutes in the state system.  This helps in advising the client as to what course to follow.  If, for example, the sentencing guidelines are low, that fact militates in favor of pursuing a trial in order to avoid the collateral consequences flowing from a conviction based on a guilty plea.  Such consequences might include immigration ramifications, loss of professional licenses or the ability to obtain licenses in the future, limitation of employment opportunities, prohibition against owning firearms, and others.  As discussed below, a trial is a viable option only if there is a reasonable chance of an acquittal on some or all of the counts. 

A Lawyer's Choices and Legal Experience

The choice of a judge is beyond a defendant or lawyer’s control.  It is a critical factor in determining how to proceed.  The differences in sentencing philosophies among judges sitting on the same bench are huge.  In the Southern and Eastern Districts, some judges can be counted on to give lenient sentences, others to mete out Draconian sentences, depending on the nature of the case and the characteristics of the defendant.  Only a lawyer intimately familiar with the predilections of the judges or one who has access to such information is in a position to advise a client as to what he should expect if he is convicted.  As it happens, Jonathan Marks has been doing this so long and so frequently that he has deep knowledge of the judges he appears before and can advise his clients accordingly.  He is also hooked into networks of other active criminal defense practitioners and will frequently consult his colleagues as to their experience before a particular judge.

The client must be carefully and thoroughly “debriefed” concerning his knowledge of the transactions underlying the charges.  If he has evidence -- physical, documentary or testimony – Mr. Marks will carefully analyze it.  Should the client know the identity of possible witnesses, Mr. Marks will attempt to determine their status – are they cooperating, have they been charged – and in appropriate circumstances approach them through a private investigator. 

The Best Strategy to Legal Defense

Mr. Marks will determine any legal defenses, including challenges to the prosecutor’s evidence, such as evidence obtained as the result of an unlawful search or an involuntary statement arising from law enforcement questioning. Other defenses that are frequently considered are misidentification, alibi, reliance on counsel,duress, entrapment, self-defense, insanity, and impossibility.

Once Mr. Marks has a thorough understanding of the nature of the charges, the strength and weaknesses of the evidence that the prosecution will offer, the availability of an affirmative defense, the evidence supporting a defense, mitigating factors, he may approach the prosecutor in order to determine the prosecutor’s objectives and his view of the case.  Having spent decades as a prosecutor and a defense lawyer, Mr. Marks has an excellent trusting relationship with all of the prosecutorial offices in the New York area.  He has access to those offices at the top levels.

By this time, Mr. Marks will have made a determination as to the strength of the prosecution’s case, the viability of a defense, mitigating factors, and the client’s sentencing exposure.  He will be able to advise the client as to whether he should go to trial, engage in plea bargaining or cooperate with the prosecution.

Should the client decide to plead guilty or if he is convicted after trial, Mr. Marks will use his long experience to advocate for the most lenient sentence available.  Under the Criminal Defense  tab on this website, you will find an example of Mr. Marks’s sentencing advocacy.

While Mr. Marks will give the client his best advice, he is mindful of the fact that the decision as to whether to plead guilty or proceed to trial, before a jury or a judge without a jury,  is the client’s.

Mr. Marks’s advice is based on vast and deep experience over a long and successful career.


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